The autonomy of religions – the unknown territory of the freedom of religion with Radu Carp (13.01.2017)

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In 2012 the European Court of Human Rights made two decisions that are completely opposite regarding the principle of religious autonomy. In the case Sindicatul Păstorul cel bun v. Romania, the right of some priests to create unions against the will and law of their Orthodox Church was recognized. In the case Fernandez – Martínez v. Spain, the Court underlined the “special confidence link” which must unite a Catholic religion teacher with the Catholic Church, judged that “the applicant was submitted to an increased obligation of loyalty” and concluded that the religious authorities, in refusing to renew his contract as a teacher, “simply fulfilled their obligations in accordance with the principle of religious autonomy”. The first case has been referred to the Grand Chamber and the final judgment of 2013 is just the opposite of the original one.

It is not the first time the principle of autonomy of religions, as part of the freedom of religion protected by Article 9, collides with other rights guaranteed by the European Convention of Human Rights. The Court concluded that the internal autonomy of the Church and its decision – making independence should prevail (Dudová and Duda v. The Czech Republic – 2001; Ahtinen v. Finland – 2008) or that the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords; were the organizational life of the community not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable (Hasan and Chaush v. Bulgaria – 2000; Metropolitan Church of Bessarabia and Others v. Moldova – 2001; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria – 2009).

What conclusion can be drawn from all these cases? Is there a consistent view of the Court regarding religious autonomy or cases involving it have to be and are decided in accordance to each concrete situation? There is no need to have a unitary jurisprudence on religious autonomy, because human rights, at least those guaranteed by the Convention, are a system of values that evolves with the dominant culture and it is impossible that human rights remain outside conflicts between culture and religion. Human rights do not play at any time the role of arbiters in these conflicts and therefore they cannot be used to condemn the position of Christian Churches on issues such as respect for life and family, human dignity, abortion, etc. Human rights do have a limited capacity to mediate between culture and religion. Autonomy of religions could be considered as a voluntary and necessary restraint of human rights. The fact that there is no consensus on what this autonomy is on the national level and therefore on European level shall be considered as a very positive aspect and not as a weakness.

The diversity of solutions regarding the autonomy of religions has to be encouraged. To think about a possible unitary view on this autonomy is unrealistic, as the religions should have an added value to any culture they enter into dialogue with. This diversity is the key for a successful accommodation and survival of a religion to any secularized environment.

BIO Radu Carp: Professor, Faculty of Political Science, University of Bucharest. Director of the Doctoral School in Political Science, University of Bucharest. MA in European studies and international relations, Institut Européen des Hautes Etudes Internationales, Nice (1996). SJD, Comparative Constitutional Law, Faculty of Law, Babeş – Bolyai University of Cluj (2002). Representative of the University of Bucharest team part of the European research network Observatory on Local Autonomy, coordinated by the Université de Lille 2 (2015 – ). Member of the Executive Committee of the E.MA – European Master’s Degree in Human Rights and Democratization of the EIUC – European Inter-University Centre for Human Rights and Democratization, Venice (2015 – ). Representative of the University of Bucharest in the project CIII-AT-0702-01-1213 – Ethics and Politics in the European Context, part of the CEEPUS III network, coordinated by Institut für Sozialethik, University of Vienna ; 12 universities from Central and Eastern Europe are part of this network (2012 – ). Visiting Professor: National Tchengchi University, Taiwan (2016), European Inter-University Centre for Human Rights and Democratization, Venice (2016); University Matej Bel of Banska Bystrica (2016); Universitá degli Studi Firenze (2015); Institut für Sozialethik, Universität Wien (2015); Trnava University (2014); Umea University (2013); Charles University of Prague (2013); University of Szeged (2012); The Munk School of Global Affairs, University of Toronto (2011); Mykolo Romerio Universitetas, Vilnius (2010); National and Kapodistrian University of Athens (2000). Research associate of: Institut für Rechtsphilosophie, Religions-und Kulturrecht, Universität Wien (2006 – 2008); The European Institute of Romania, in the framework of Programme Accession Impact Studies – PAIS 3 (2005); The Ludwig Boltzmann Institute for Religious Studies towards EU Integration, a programme of New Europe College – Bucharest (2004); TMC Asser Institut, Den Haag (2002). He published 15 books as author and co-author. Latest books: Politograma. Incursiuni în vocabularul democraţiei (Politograma. Travels into the vocabulary of democracy) – Institutul European, Iaşi, 2015; Dreptul public, perspectiva comparată şi analiza politică. O intersecţie necesară (The public law, the comparative perspective and the political analysis. A necessary crossroad) – Adenium, Iaşi, 2015; (ed.) Calea europeană a Republicii Moldova (The European path of the Republic of Moldova) – Adenium, Iaşi, 2016. Articles and book chapters published in Austria, Belgium, Bulgaria, Germany, Lithuania, Poland, Republic of Moldova, the Netherlands, USA.

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